Policy —

What’s next for Jammie Thomas-Rasset?

Jammie Thomas-Rasset has at least six options for moving forward after the …

Now that Jammie Thomas-Rasset owed $1.92 million to the recording industry for sharing 24 songs on KaZaA back in 2005, the case might seem to be closed. In reality, though, Thomas-Rasset still has numerous options for dealing with the verdict. Let's run them down.

Pay it

According to Thomas-Rasset, paying the $1.92 million damage award is simply impossible. As a brownfield development coordinator for the Mille Lacs band of the Ojibwe, Thomas-Rasset doesn't bring the cash home in wheelbarrows. "Like squeezing blood from a turnip," is how she described any attempt to collect on the judgment.

Settle

According to Thomas-Rasset's testimony during the trial, she could have settled back in 2005 for $5,000. The RIAA says that the amount was somewhere between $3,000-5,000; more importantly, it remains willing to settle the case.

Our understanding is that Thomas-Rasset has simply been unwilling to negotiate a settlement; she would rather pay nothing, continually claiming innocence. A judicially-ordered settlement conference before the trial produced nothing.

Kiwi Camara, Thomas-Rasset's lawyer, said yesterday that she would examine a settlement offer, but he wouldn't commit to anthing. Certainly, when facing a $1.92 million award, $5,000 looks like a bargain—the amount wouldn't even cover the plane tickets for recording industry attorneys to attend the trial.

But if you feel that the record industry is "extorting" you, this is no doubt an unappetizing plan.

Bankruptcy

The sheer, outrageous size of the damage award in the case is already prompting calls to change the law.

Bankruptcy is of course an option, but there are potential complications: not all debts can actually be discharged in bankruptcy court. Back in 2007, the EFF prepared a brief report on the issue, intended for lawyers who were arguing exactly these types of cases.

The report pointed out that copyright infringement judgments can be discharged, unless the infringement was ruled to be a "willful and malicious injury." (Note that although Thomas-Rasset was found liable for "willful" copyright infringement, this is a separate standard that requires a separate judicial ruling on her state of mind.)

The issue doesn't come up often with relation to copyright infringement judgments against individuals, of course, so it's not clear how this might unfold. The takeaway, though, is that clearing the debt in bankruptcy court is possible, but not guaranteed. Should Thomas-Rasset take this route and fail to have the debt discharged, settlement would suddenly look like a super-appealing alternative to having wages garnished for the rest of one's life.

The constitutional challenge

Though the case is "over," it's not actually over. The jury has made its ruling on the facts of the case, but Judge Michael Davis can still run on matters of law. One key matter, made even more relevant by the massive $80,000 per-song damage award, is the constitutionality of such a damage award. Is it an "excessive fine" under the Eighth Amendment?

That amendment says that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Camara has already indicated that he plans to contest the award on these grounds unless Thomas-Rasset takes a settlement.

Would it work? Recall that after the first trial, Judge Davis took his opportunity to assail that verdict with these words: "Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent."

Given that that penalty is now eight times greater than it was in that case, we can certainly expect Judge Davis to give the issue a close look. Davis, the first African-American judge to head up the Minnesota US District Court, is no lightweight justice who was just fitted for his robe. He was appointed to a lifetime seat on the federal bench back in 1994 and has already served a term on the nation's Foreign Intelligence Surveillance Court—the most secret chamber in the country.

He showed no emotion at all during the verdict yesterday, of course, but based on his previous comments about this case, it's hard not imagine him holding out hope that a well-argued set of legal challenges comes his way and allows him at least some discretion in mitigating the award.

Appeal

Such motions would take place within the federal courts, but Thomas-Rasset could also appeal the entire case to the Eighth Circuit Court of Appeals, too. Federal appellate cases are generally high-profile, high-cost affairs, but the legal team of Camara and Sibley have indicated their continued willingness to represent Thomas-Rasset.

Change the law

The sheer, outrageous size of the damage award in the case is already prompting calls to change the law. Even among the Ars commentariat, plenty of readers believe that Thomas-Rasset did infringe the 24 copyrights at issue, but there was near universal disdain for the jury and for the law that allowed such an award.

But the outrage isn't confined to the blogosphere. The Washington lobby group CCIA, backed by AMD, Microsoft, Yahoo, Google, and others, calls the verdict "ridiculous."

"Our copyright laws are overbroad, being misused and enforced with a zeal out of proportion to common sense," said CEO Ed Black. "When Sony BMG massively and illegally distributed music CDs containing spyware that compromised individual users' computer security and infected government and military networks worldwide, the FTC only ordered them in 2007 to reimburse end-users up to $150 for computer damages. Yet when Ms. Thomas shared 24 songs belonging to Sony BMG and other labels on the Internet, she was penalized $80,000 for each single track."

He concluded, "Copyright law was created in a different era for different business models. It needs to be reformed."

Judge Davis feels the same way and has already "implored" Congress to "amend the Copyright Act to address liability and damages in peer?to-peer network cases such as the one currently before this Court."

University of California law professor Pam Samuelson, an expert on statutory damages and copyright law, also called for reform in a fascinating paper released in April 2009.

In reference to the first Thomas-Rasset judgment, Samuelson concluded, "Some jurors in the Thomas case wanted to award $750 per infringed song, while others argued for $150,000 per song; why they compromised on $9250 per song is a mystery. In today’s world where the average person in her day-to-day life interacts with many copyrighted works in a way that may implicate copyright law, the dangers posed by the lack of meaningful constraints on statutory damage awards are particularly acute."

One key suggestion for reform: allowing judges to revise damage awards to below the current $750 minimum threshold in such cases.

Had the amount been a "mere" $750 a song, for an $18,000 total fine, the Thomas-Rasset case would have offered little incentive to reform the law. But when the first of the RIAA's 30,000+ actions goes to trial and the plaintiffs emerge with a $1.92 million award... legislators may take notice.